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EU: Legal actions pile up against Frontex for involvement in rights violations

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23 February 2021

Two recent legal actions accuse Frontex, the European Border and Coast Guard Agency, of serious violations of the rights of migrants and refugees in Greece.

Two separate actions – one by the Syria Justice and Accountability Centre (SJAC), and one by Front-Lex with the Legal Centre Lesvos – have been launched since the end of January, both aiming to “finally break the cycle of impunity and trigger independent and serious investigations into collective expulsions in the Aegean”, according to Legal Centre Lesvos coordinator Lorraine Leete.

On 28 January the SJAC filed a communiqué with the Office of the Prosecutor of the International Criminal Court (ICC), arguing that policy and practice implemented following the 2016 EU-Turkey Statement amount to a violation of article 7 of the Rome Statute of the ICC, on crimes against humanity.

The submission argues that “Greek government officials and their agents, in addition to Frontex officials and their agents, have perpetrated a widespread and systematic attack against refugees since the EU-Turkey Deal was entered into force in March 2016.”

The SJAC includes witness testimony and video evidence of events at the Greek-Turkish border and in reception and identification centres on Greek Aegean islands. The submission follows a recent report from Legal Centre Lesvos that also concluded that the violations of migrant and refugee rights in Greece amount to crimes against humanity.

The SJAC complaint was followed two weeks later by a submission from Legal Centre Lesvos and Front-Lex, a “legal hub for challenging EU migration policies,” calling for specific action by Frontex under Article 265 of the Treaty on the Functioning of the European Union (TFEU).

This provision allows individuals to complain that the actions or omissions of EU bodies, offices or agencies are acting against the law. The 15 February letter to Frontex from Front-Lex and Legal Centre Lesvos calls for the immediate suspension or termination of all activities in the Aegean Sea region because of serious or persistent violations of human rights, in particular “a violation of the prohibition on refoulement”.

It calls for the agency to act in accordance with Article 46(4) of the 2019 Frontex Regulation, which obliges the executive director to “suspend or terminate any activity by the Agency, in whole or in part, if he or she considers that there are violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to persist”.

Lorraine Leete, Coordinator at Legal Centre Lesvos, explains:

“In every account shared with the Legal Centre Lesvos by pushback survivors, Greek authorities summarily expelled migrants from Greek territory through forcible transfer towards Turkish waters and ultimately abandoned them at sea, putting their lives in grave danger, with the complicity of Frontex. Despite the numerous reports and investigations showing the widespread and systematic nature of this ongoing practice, the Greek state continues to dismiss such allegations as ‘fake news.’

Europe has been perpetrating violence against migrants at its borders with complete impunity for so many years that it seems EU and Greek authorities believed that under the cover of the COVID-19 pandemic they could escalate their attack on migrants in the Aegean region without anyone reacting.

The suspension or termination of the activities of Europe’s unaccountable, militarised Border and Coast Guard Agency Frontex in the region would certainly be a good start. But justice for survivors of collective expulsions must go beyond this to include safe passage and defunding, demilitarising and dismantling Fortress Europe’s violent border regime."

If Frontex director Fabrice Leggeri acts on the Front-Lex and Legal Centre Lesvos request, it will be the second time that the agency has invoked Article 46(4). In January it pulled out of operations in Hungary - over a month after a ruling by the Court of Justice of the EU (CJEU) against ongoing pushbacks of individuals into Serbia. Frontex had continued to provide operational support to Viktor Orbán's "illiberal democracy" despite European Commission infringement proceedings against the state.

“The number of victims in Hungary amounted to tens of thousands before [Leggeri] practically had no choice but to terminate the Agency’s activities in Hungary,” comments Front-Lex Senior Legal Advisor, Iftach Cohen.

According to Article 265, the bodies, offices and agencies of the EU must, if called upon to act by any natural or legal person, issue a formal response within two months. If the agency fails to do so, an individual may bring a legality review action before the CJEU.

Omer Shatz, Front-Lex Legal Director, comments:

“For the first time since WWII Western Europe is implicated with crimes against humanity, first in the Central and recently in the Eastern Mediterranean. Like back then, also today, the silence is remarkable.”

However, neither Shatz nor Cohen expect Leggeri to pay much heed to their demands. “We have very low expectations of Leggeri given his poor track record with regard to the Agency’s fundamental rights obligations," they told Statewatch:

“This is the same guy who for years rejected calls from Frontex’s very own Fundamental Rights Officer to terminate the Agency’s activities in Hungary… Having no hope Leggeri, the [Management] Board or the Commission will have a change of heart any time soon, our strategy is to seek any available legal avenue in order to oblige [Frontex] to comply with its fundamental rights obligations wherever it operates.

We do expect Frontex to comply with its own regulations, the [EU treaties] and European and international human rights and criminal law. In case they won't we will expect the competent courts to force them to do so. In case they won't, well, this would be a sad day for the rule of law and mean the EU dropped its liberal ethos altogether.”

Shatz made a submission to the ICC in June 2019 calling for the prosecution of the EU and member states for their involvement in the deaths of thousands of people in the Mediterranean and the detention and maltreatment of migrants in Libya, following the abandonment of the Italian-led Mare Nostrum operation and its replacement by Frontex's Operation Triton in 2014.

The submission was based partly on a 2014 Frontex internal report which said that “the withdrawal of naval assets from the area, if not properly planned and announced well in advance – would likely result in a higher number of fatalities”. This case is currently being processed by the OCP, and includes 25 individual suspects.

Shatz said that further cases are in the works. The impression that “nothing happens” is “misleading”, he explains:

“The law is always late: [it took] six years to criminally indict the Italian officials responsible for the 2013 Lampedusa Shipwreck and today they are standing trial for multiple counts of involuntary manslaughter. [There is no] reason in six years from now today's culprits will not face the same charges.

On the similarities between these cases, Shatz remarks:

“EU migration policies no longer pertain to state responsibility and human rights. Rather, their gravity and systemic nature means they amount to atrocity crimes under international criminal law and the jurisdiction of the ICC.

I remind EU and Member States officials, and in particular Frontex Executive Director – who is already a suspect in the 2019 case over Libya – that a new prosecutor has been appointed.”

Documentation

• Syria Justice and Accountability Center: Communication to the Office of the Prosecutor of the International Criminal Court under Article 15 of the Rome Statute - The Situation in Greece: systematic human rights abuses against refugees on Greek territory and at reception and identification centres on the Aegean islands (link to pdf)
• Front-Lex and Legal Centre Lesvos: Preliminary Action Pursuant to Article 265 TFEU (link to pdf)

Further reading

• 5 February 2021, Greece accused of committing crimes against humanity at its borders
• 04 February 2021, Frontex: Management Board pushes back against secrecy proposals in preliminary report
• 18 January 2021, EU: Frontex director accused of misleading parliament over fundamental rights obligations

Image: Dimitris Avramopoulos, CC BY-SA 2.0

This article was updated on 23 February 2021 to include additional quotes from Omer Shatz and Iftach Cohen.